Wiener v Spahn

Wiener v Spahn 2015 NY Slip Op 05270 Decided on June 18, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 18, 2015
Tom, J.P., Sweeny, DeGrasse, Feinman, Gische, JJ.
652735/12 13662 13661

[*1] Edith Wiener, Plaintiff-Appellant,

v

Laura Spahn, Defendant-Respondent.

Schlam Stone & Dolan LLP, New York (Jeffrey M. Eilender of counsel), for appellant.

Anderson & Ochs, LLP, New York (Mitchell H. Ochs of counsel), for respondent.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered July 17, 2013, which, insofar as appealed from as limited by the briefs, granted defendant's motion to dismiss the first through third causes of action, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered January 7, 2014, which denied plaintiff's motion for reargument, unanimously dismissed, without costs, as taken from a nonappealable paper.

Since the parties' mother's will contains no language indicating that noncompliance with the terms of paragraph 7 will result in forfeiture of a bequest thereunder, the first cause of action, which seeks forfeiture of all bequests defendant received under paragraph 7, fails to state a cause of action (Allen v Trustees of Great Neck Free Church , 240 AD 206 [2d Dept 1934], affd 265 NY 570 [1934]).

The second cause of action, which arises from defendant's attempt to sell her interests in two Bronx properties in breach of the terms of the will, and the third cause of action pertaining to all the partnership interests, are barred by the doctrine of res judicata.

The Decision and Order of this Court entered herein on December 4, 2014 is hereby recalled and vacated (see M-31 decided simultaneously herewith).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 18, 2015

CLERK